Habitual residenceThe Supreme Court has recently given three judgments, all of which are of crucial importance to all practitioners.

A (Children)[2013] UKSC 60The background to this case at first instance and in the Court of Appeal - ZA & Anor v NA[2012] EWCA Civ 1396 - can be found in my earlier Family Law Week Update from March 2013. In the Supreme Court, the appeal dealt only with the fourth child who had never set foot in England and Wales and considered whether or not the fourth child could be said to be habitually resident in England and Wales, and in the alterative whether the parens patriae (nationality) jurisdiction existed and could be exercised in relation to the fourth child. Baroness Hale of Richmond (who gave the lead judgment) made clear that the question as to whether or not physical presence was a requisite ingredient of habitual residence was a question which would have to be determined by the Court of Justice of European Union, if necessary. In this case, a referral to the CJEU was not necessary as Baroness Hale went on to make clear that there was a parens patriae jurisdiction that existed in relation to the fourth child, who was of dual British and Pakistani nationality. The key points from Baroness Hale of Richmond's judgment are as follows:-

The return order made by Parker J was not an order under s.1 of FLA 1986 and therefore was not covered by the jurisdictional prohibition in s.2 of FLA 1986. The return order was an order made within BIIR; and an order relating to parental responsibility. The BIIR schema applies in this case, even though one of the states involved (Pakistan) was (and is) not a signatory to BIIR. This extends the jurisprudence of the Supreme Court set down in Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2009] 1 FLR 361.

The 'rule' that one parent cannot change a child's habitual resident unilaterally without the consent of the other parent (on the basis that both parents have parental responsibility for the child) is not seen in EU jurisprudence – whether this 'rule' is right may require fuller consideration in another case.

ECJ case law on the issue of habitual residence to date – Re A (Case C – 523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C-497/10 PPU) ]2012] Fam 22 – has not addressed the issue before the SC as to whether physical presence is a necessary ingredient of habitual residence. It is clear that a person does not have to be physically present in a state at all times to retain habitual residence in the state. In both ECJ judgments (Mercredi v Chaffe and Re A) physical presence is a phrase that is mentioned in the analysis of habitual residence. Baroness Hale erred on the side of saying that physical presence is a necessary ingredient of habitual residence, but ultimately decided that this ruling would not be acte clair. If this issue needed to be resolved for the purposes of this case, then a PPU would need to be made to the ECJ.

Prior to this case, there had been a debate for some time as to whether the test to be applied in EC cases was the same as the test to be applied in non-EC cases – see: Re A (Area of Freedom, Security and Justice) (C-523/07) [2009] 2 FLR 1 and Mercredi v Chaffe (Case C-497/10) [2011] 1 FLR 1293 vs. R v Barnet Borough Council ex parte Shah [1983] 2 AC 309. The debate was somewhat shut down by the analysis of Sir Peter Singer in DL v EL (Hague Abduction Convention – Effect of Reversal of Return Order on Appeal) [2012] EWHC 49 (Fam), which was later endorsed by the Court of Appeal in that case and then by all parties in this case. Baroness Hale made clear that it was not strictly necessary to resolve the date as to which test applies given that the Supreme Court was only dealing with habitual residence under BIIR (EC test), abeit there had been a consensus at the bar that the tests were now the same in light of DL v EL [2012], but that if there was a difference in the tests, the test to be adopted was the EC test.

It is important to err away from an over legalisation of the test. Prior to this case, it had been widely accepted that to allow one parent to change the habitual residence of a child would be a 'charter for abduction'. Not necessarily so, says Baroness Hale, due to, for example,as article 10 of BIIR which allows for the retention of jurisdiction in a child's former state of habitual residence. The European approach to habitual residence which focuses on the child's situation is preferable to the earlier approach adopted by English courts from ex parte Shah [1983] onwards – the intention of parents is only one relevant factor (not the most important factor). The reasoning in ex parte Shah [1983] should no longer be used.

Habitual residence can technically be acquired in one day – the length of time depends on the facts of the case. No minimum period of time is required before it can be said that habitual residence is acquired.

The parens patriae jurisdiction existed and was capable of being exercised in relation to the child. The case was remitted to Parker J to determine whether or not the jurisdiction should be exercised, and Parker J decided to exercise the jurisdiction.

Lord Hughes, who gave the minority judgment, took the view that he could decide the issue of habitual residence. He stated that habitual residence is a question of fact and that a legal rule that physical presence is a necessary prerequisite for habitual residence is not appropriate and should not overlay what is a factual enquiry. When assessing habitual residence, a factual enquiry as to a child's integration into the family unit should be undertaken. If current physical presence is not essential for habitual residence, then habitual residence can also exist without physical presence, especially where physical presence has not occurred as the result of an unexpected force majeure.

In the matter of KL (A Child) [2013] UKSC 75The Supreme Court ordered the return of a child, aged 7 to Texas, USA. The courts at first instance and in the Court of Appeal had refused to order the child's return. The case was unusual on its facts – the child had been brought to this jurisdiction by the respondent mother pursuant to an order of the USA Hague court. Subsequent to the child's return, the USA appeal court then overturned that order and ordered the child's return. By the time the appeal court had made its decision, the child had been living in this jurisdiction for 11 months. The respondent mother argued that the return order was moot as the child had already left the USA. The mother's case was very similar to the case of Chafin v Chafin (Case no. 11-1347) (and was not consolidated with that appeal) heard by the USSC. As regards habitual residence, the Supreme Court stated the following:-

The definition of habitual residence should be determined by ECJ case law and that the same test should apply to Hague Convention 1980 proceedings as to other international children law proceedings. Habitual residence is a "question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce": see ZA [2012].

The rule that a young child in the sole custody of a parent will generally have the same habitual residence as that parent is a helpful generalisation of fact, but not a proposition of law.

Parental intent is a component of habitual residence but not the sole defining feature. As regards paternal intent, the important consideration is the reasons for the child leaving one state and going to stay in another state.

A chid does not remain habitually resident in State A as a matter of law if State A has permitted the child to leave and live in State B, even if that order granting permission is subject to an appeal. To say otherwise would be to place a legal gloss on habitual residence.

Ultimately, the Supreme Court dismissed the appellant father's Hague Convention 1980 appeal on the basis that the child was habitually resident in England and Wales at the relevant time, but went on to find in the father's favour in respect of his inherent jurisdiction application. Comity was an important factor: the parties had been engaged in litigation in respect of the child – a Texan child, in Texas, USA for 5 years. The Supreme Court considered that it was for the Texan court to determine the child's future and that the child had the best chance of developing a proper relationship with both of his parents if he was returned to Texas. The child could not be said to suffer significant harm if returned to Texas. The case is likely to be helpful to practitioners seeking to obtain a 'summary' return of a child in wardship proceedings, despite a child having been in this jurisdiction for a significant period of time.

In the matter of LC (Children) (No 2) [2013] UKSC 221The Supreme Court upheld the appeal of the appellant father and eldest child of the family, T aged 13 years old. There were four children of the family, aged 13, 11, 9 and nearly 15 at the time of the Supreme Court hearing. The mother had applied at first instance for the summary return of all four children to Spain. The children had been in Spain since July 2012 and then returned in Christmas 2012 for a holiday with the father who then did not bring them back to Spain as he stated that the children did not wish to return. At first instance, Cobb J ordered the summary return of all four children. That order was appealed successfully by the father in the Court of Appeal. The Court of Appeal determined that Cobb J was wrong to exercise his discretion in favour of a return of T having found that T objected to returning to Spain, pursuant to article 13(b) of Hague Convention 1980. Further, as a result of their decisions in respect of T, the Court of Appeal accepted that the case would have to be remitted to the High Court for consideration as to whether or not it would be intolerable to separate T from her siblings (the younger siblings' appeal grounds having been unsuccessful and Cobb J having not dealt specifically with this issue at trial). The Court of Appeal rejected the ground of appeal in respect of habitual residence, pursuant to article 3 of Hague Convention 1980.

Subsequent to the appellate decision, the mother made clear that she was going to pursue her application for the return of all four children to Spain in the Spanish courts, pursuant to articles 11(6)-(8) of BIIR. This application was possible as a result of the English courts having only refused to return the children under article 13 of Hague Convention 1980. As a consequence, the only way of stopping this application was for the father, T and her siblings to appeal the habitual residence decision to the Supreme Court as a finding that T and her siblings were always habitually resident in England and Wales under article 3 of Hague Convention 1980 which would prevent the mother pursuing an articles 11(6)-(8) of BIIR application.

Lord Wilson (giving the majority judgment) stated that:

In some unusual cases a child may be said to have a different habitual residence from that of his / her parents with whom he / she has travelled with from State A to State B. The requirement of integration creates room for such a concept.

The idea that a young child could have a different habitual residence from that of his / her parents is not possible. However, where a child is older, specifically where a child is an adolescent or should be treated as an adolescent as she / he has the maturity of an adolescent, and perhaps where a child's residence in a new state has been for a short duration, the integration enquiry must look at more than just surface features of a child's life in the new state. There is no reason to fail even to consider the child's state of mind during his / her period of residence in the new state. Accordingly, in principle the state of mind of an adolescent child during their residence in a state may affect whether that period of residence can be deemed habitual.

The issue as to habitual residence should be remitted for the High Court to consider; it was not right to accede to father's and T's application to substitute Cobb J's decision with a conclusion that T remained habitually resident in England and Wales at the time of her retention by the father. The issue as to habitual residence for the younger three children was also remitted for fresh consideration.

T should have been joined to the first instance proceedings. The threshold criterion for considering whether or not to join a child to Hague Convention 1980 proceedings is the 'best interests' statutory test under rule 16.2 of FPR 2010. If the court decides that it is in the child's best interests to be joined, then only at that stage is the court's discretion open as to whether or not to join a child. It remains necessary for a child to be represented by a Guardian in Hague Convention 1980 proceedings. It may be helpful in some cases for children to be joined to Hague Convention 1980 proceedings where there is an issue as regard habitual residence and an elder child of appropriate maturity may be able to contribute relevant evidence not easily given by either of his/her parents about his / her state of mind during the period in question. To this end, habitual residence issues are somewhat analogous to article 12 / settlement cases. The Practice Direction 16A on joinder of children relates to all private law children disputes and is not specifically focused on Hague Convention 1980 proceedings, albeit it can be used in such proceedings.

Baroness Hale stated that:

Habitual residence is a question of fact. In relation to all three older children, the question is the quality of their residence. Some factors that need to be assessed when looking at the quality of their residence are objective, and some also are subjective. A child's state of mind – their reasons for being in a state and his/her perception of their situation when in that state – are relevant and feed into the ultimate question as to whether or not a child has achieved a sufficient degree of integration into a social and family environment for his / her period of residence to be termed 'habitual'.

The court should not overlay the factual enquiry with a general rule that the perceptions of younger children are irrelevant to the habitual residence analysis. The age of the child is though relevant to the factual questions being asked. The habitual residence analysis is child-centered – the court must analyse the child's degree of integration. The environment of an infant is his / her family environment and is therefore governed by the person with whom he / she lives, but once a child goes to school his / her social world widens and more actors need to be taken into account. Where parents are separated, children may also have two homes and so integration needs to be analysed in this context as well.

When analysing habitual residence, the reasons as to why someone has left State A and gone to State B are relevant. There is, for instance, a difference between a pre-planned and carefully organised relocation, and movement from State A to State B in ambiguous circumstances or for a temporary purpose.

It is not for parents to determine purely their child's state of habitual residence, but the intentions of parents, and the impact of those intentions on a child are relevant to the factual question of where a child is habitually resident.

Although tempting to conclude that the children all remained habitually resident in England and Wales at the relevant time, in the interests of justice the case should be remitted as there may be other evidence that needs to be put before the court in respect of this issue.

The case was unusual, and in a case such as this the perception of the child is at least as important as that of the adult in arriving at the correct answer as regards integration. This point accords with the general increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents' decisions.

The interplay between care proceedings and international lawA growing area in the field of international children law is the interplay between care proceedings and international law. An increasing number of parents are attempting to remove their child/ren to another jurisdiction to escape care proceedings. There have been various important decisions that address the legal issues in respect of this growing phenomenon:-

In Re LM (A Child) [2013] EWHC 646 (Fam), the parents had three children who had all been subject to English care proceedings and were all placed in kinship placements away from the mother. The parents travelled to the Republic of Ireland to give birth to their fourth child so as to avoid care proceedings in respect of that child. The Health Services Executive of Ireland ("HSE") then started proceedings in relation to the fourth child as they had been made aware of the previous care proceedings. As a consequence, the child was placed into foster are. The mother then returned to England and the father went to Scotland. The mother asked for the child to be returned to England and Wales and sought an order that the care proceedings in the Republic of Ireland be transferred to the English court. All parties in the Irish care proceedings consented to the transfer and the Irish High Court duly made a request to the English court to assume jurisdiction in relation to the child. The request was transmitted via the English Central Authority. The Irish court made a request for the High Court of England and Wales to accept jurisdiction. Cobb J granted the application as he accepted that the English court was best placed to hear the case and it was accordingly in the child's best interests for the English courts to assume a welfare jurisdiction. Cobb J also made clear that the course that the parents had taken was futile and potentially damaging to the child and then went on to give detailed guidance as to the approach to be adopted in article 15 of BIIR transfer applications:-

An article 15(5) request must be considered judicially not administratively. The function of the requested court (England) is limited to a 'best interests' determination, pursuant to article 15(1), article 15(5) and in consideration of the Practice Guide to BIIR. It is for the requesting court (Ireland) to determine the issue of 'particular connection'.

If an article 15 request is made, then it would help for the request to go through the Offices of the International Judicial Network, or alternatively the requesting state could invite one of the parties to drive along the request and seek directions for a speedy judicial determination in the requested state. A speedy resolution of an article 15 request is essential. Either of these routes may be quicker than going through the Central Authorities.

Any such request must be immediately referred to a Judge of the High Court.

Co-operation between the authorities of the requesting and requested state is essential – see Chapter IV of BIIR. If the child is being moved from one care placement to another, then the consent of the requesting state is necessary before any judgment can be made by the requested state. Once the English court has assumed jurisdiction, the provisions of Part IV of Children Act 1989 apply in their entirety.

The court can take some preparatory steps to give effect to the imminent receipt of the proceedings. This anticipatory process operates as an exception to the principle that the courts of England and Wales will not generally exercise jurisdiction in relation to a child who is nether physically present nor habitually resident here. This is a legitimate process as it allows for the court to implement protective measures to safeguard a child in transit from one jurisdiction to another: Re W (Jurisdiction: Mirror Order) [2011] EWCA Civ 703 and Re P (A Child: Mirror Orders) [2000] 1 FLR 435. The placement of the child can be achieved under article 56 of BIIR pending the child coming to this jurisdiction. The Irish court will be considered to be responsible for the child until the child arrives in England, and then the HSE's responsibility will end at the commencement of the first directions hearing in England following the child's arrival.

Article 15(6) of BIIR prescribes for co-operation between member states as regards the transfer process.

In HJ (A Child)[2013] EWHC 1867 (Fam), the court was dealing with a mother who had fled to the Republic of Ireland when heavily pregnant with her child. The mother also had two elder children who had been the subject of English care proceedings. After fleeing, the mother gave birth to the child in the Republic of Ireland and an emergency care order was made by the Irish court on the same day. The HSE then applied to the Irish High Court for a transfer of the case to England and Wales, pursuant to article 15 of BIIR. An article 15 transfer was made, together with an order that HSE be at liberty to introduce a request before the English court.

A request was then introduced before the English court and came before the President. The President endorsed the judgment of Re L-M [2013]. It was plainly in the child's best interests for his future to be determined in England and Wales. The President also made clear that the article 15 BIIR procedure should be conducted swiftly as the proper answer to an article 15 request is often fairly obvious. In some cases where the case appears clear cut, it is appropriate for the court to make an order nisi, namely that an order will take effect without further hearing unless the parents (or local authority) give notice of their wish to make representations as to why the transfer order should not be made. It is also helpful for the foreign local authority (HSE in this case) to attend the first hearing in the English court in case there were issues with the transfer of the case, and thereafter during the course of, or after the said hearing (as the court may direct), they would cease to have responsibility for the child.

In E (A Child)[2014] EWHC 6 (Fam), the President observed that there was a wider context to the case, namely that there was a frequent complaint made that the courts of England and Wales were exorbitant in the exercise of their care jurisdiction over children from other European countries, and that those concerns were exacerbated by the fact that the United Kingdom is unusual within Europe in permitting the total severance of family ties without parental consent. Further, the President made clear that it would be wrong for practitioners and / or the court system in United Kingdom to adopt a 'chauvinistic' appraoch to other European states practices – it is not right to descend into a decisive value judgement as to the laws and procedures of other European countries. International comity is the daily reality of the courts. The President went on to give guidance in three particular areas:

BIIR applies to English care cases. A care order cannot simply be made if a child is present in the jurisdiction of England and Wales. The starting point is an enquiry as to where the child is habitually resident, pursuant to article 8 of BIIR. The only other jurisdictional basis for making a care order is under article 13(1) of BIIR – namely, in cases where the habitual residence of a child who is present in England and Wales cannot be established. Article 20 of BIIR only applies in cases where the court needs to take provisional, including protective, measures on an urgent basis (short-term holding arrangements). If the court does have a substantive jurisdiction, then the court will also need to consider whether to exercise its powers under article 15 of BIIR. Co-operation on cases is also essential, pursuant to article 55 of BIIR.

As a matter of good practice, in cases with a European dimension, the court should set out explicitly in its order and judgment the basis on which it is accepting / rejecting jurisdiction and the basis on which it has / has not decided to exercise its power under article 15 of BIIR. Judges must be astute to these points even if they have been overlooked by the parties. Where article 17 of BIIR applies it is the responsibility of the judge to ensure that the appropriate declaration is made.

Articles 36 and 37 of Vienna Convention on Consular Relations are important:- (1) consular officers of foreign states shall be free to communicate with / have access to their nationals; (2) if a foreign national is detained in another state, the foreign state shall inform the consular post and a consular official shall have the right to visit their national, but shall refrain from taking action on behalf of them if such action is expressly opposed by the said national; (3) if a Guardian is appointed for a child or other foreign national who lacks full capacity, there is a duty on the state to inform the consular post of such an appointment. In considering the possible implications of articles 36 and 37, family judges should assume that the court itself may be a 'competent authority' and that 'detention' can include detention within the meaning of sections 2 and 3 of Mental Health Act 1984 or, in the case of a child, under section 25 of Children Act 1989. There must be transparency and openness as between the English family courts and the consular / other authorities of foreign states. The court should not generally impose or permit any obstacle to such transparency and openness; in particular the court should not put in place an order / injunction that prevents the transmission of information. If the court is sitting in private, the court should generally accede to a request for a consular official to be present at the hearing as an observer in a non-participatory capacity and / or for a consular official to obtain a transcript of the hearing, orders and other relevant documents. The court should inform the relevant consular officials if one of their nationals is represented by a Guardian and /or is detained in proceedings. If the court is minded to adopt a more restrictive appraoch, the court must hear submissions in respect of this issue and set out its reasons explicitly in its judgment and order.

In this case, it is important to note that the President also made a reporting restriction order on the basis that the mother was allowed to tell her story, but could not do so in the English print or broadcast media or by using the English language on the internet in such a way as to identify the child. The court should not interfere with foreign media as that is a matter for the foreign court to control, if necessary, but could place restrictions on publication via internet or satellite technically as there the foreign media have extra-territorial effect. See Re J (A Child) [2013] EWHC 2694 (Fam) and Re P (A Child)[2013] EWHC 4048 (Fam) for earlier guidance.

Returns to a third state under Hague Convention 1980In O v O [2013] EWHC 2970 (Fam), the court was dealing with an application under the Hague Convention 1980 and inherent jurisdiction for the return of a child, aged 9 years old, to USA. The child had a sibling, aged 2 years old, who was not subject to the proceedings. The applications were issued by the child's mother. The father opposed both applications and made clear that the child should remain living with him, but in the alternative if there was to be a return it should be to Australia. The family were initially based in USA, but travelled regularly to Australia, Thailand and England. In 2005, the parties moved to Australia and just over one year later they moved back to USA and then subsequently to Australia. The subject child was born in Australia and court proceedings were initiated in that country. The parents then entered into an agreement that the Australian proceedings would be dismissed on the basis that the parents had entered into an agreement to leave Australia and live in USA. The family's possessions were packed into a shopping container for USA and the mother had registered her job on the basis that she had accepted a new post in USA. The father and subject child then went on a holiday to Thailand, with father having indicated he would travel to England for a visit after the holiday in Thailand. After arriving in England, the father made clear that he intended to remain in England with the subject child. The mother issued custody proceedings in the USA and then issued these proceedings.

Keehan J found the father to be a wholly unreliable witness who had repeatedly lied to the court in his oral evidence (to the extent that he considered whether or not to refer the matter to the Attorney General for consideration of prosecution for the offence of perjury), and the mother by contrast to be entirely straightforward. Keehan J went on to find that the father had decided to renege on the parents' plan before he and the child left Australia, and that accordingly the removal of the child from Australia was wrongful, as was the subsequent retention. Further, he found that the article 13(b) objections defence was not established.

Keehan J then dealt with the issue as to which state the child should be returned to and was persuaded to return the child to USA, not Australia, despite Australia being the state of the child's habitual residence and the state from which the child was wrongfully removed. His decision was based on the following:-

Neither the preamble nor article 1 of Hague Convention 1980 are in force in domestic law. The preamble makes clear that a return should be to a child's state of habitual residence (Australia in this case). The Explanatory Report of Perez-Vera also makes clear that the specific articles of Hague Convention 1980 are deliberately silent on the issue as to whether a child has to be returned to his / her state of habitual residence.

The Hague Convention 1980 can be given a purposive interpretation, not a narrow and restrictive one. The Hague Convention 1980 is designed to promote the welfare of the child. It would be strange if the Hague Convention 1980 required steps to be taken which were positively contrary to the interests of the subject child. In this case, it would be utterly absurd and wholly contrary to the child's interests for her to be returned to Australia.

Further, Keehan J made clear that even if he was wrong about his decisions under Hague Convention 1989, he would be entitled to use the inherent jurisdiction to order the return of the child to USA, pursuant to article 18 of Hague Convention 1980.

This is the first and only case to date in the law reports (of which I am aware) where a child was retuned to a 'third state' under Hague Convention 1980.